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Software is the New Engine and Must be Patentable

I have long since lost hope that those who are truly anti-patent and anti-software zealots will ever come to accept that software should be patentable. For reasons that are beyond me they will not even admit that software can be patented. Talking to such a lunatic fringe is hardly worth the time it takes, or the adjida it causes, and seems to approximate a real life Monty Python sketch where the people who claim to have the far superior intellect have such narrow minds that even in the face of overwhelming proof they cling to the irrational and simply incorrect view that software is in fact math and everyone knows math isn’t patentable. Yes, the lunacy is high, very high indeed. So high that the only reason worth continuing to write articles like this is to hopefully prevent the overall anti-patent and anti-invention hysteria that seems to be gaining steam. But the real goal is to try and make sure that any policy makers, decision makers and even those who wear black robes and work at that hallowed place on the corner of First Street, NE and East Capitol Street understand that the steam engine of the 21st century is software, and software must be patentable!

A very good friend of mine recently asked me a question in an e-mail, and it is one that I have been asking myself for some time now. For the life of me I have not been able to understand why otherwise intelligent people simply cannot understand, or refuse to understand, that computers do not provide the “magic,” but rather what is magical is software. Without software a computer is nothing more than a box of miscellaneous pieces that can’t do much of anything. They do make nice sticky-note holders, and they collect dust extremely well, but a computer without software is about as useless as a door without a knob, a clock without hands or a car without an engine. In other words, a computer without software is completely and totally useless. It is the software that directs a computer to do unique and often wonderful things, and it is the software that provides the innovative spark, not the machine. We do nothing but an injustice to ourselves to ignore this reality. Software is like a process, and processes have been patentable since Thomas Jefferson wrote the 1790 Patent Act. Software defines the sequences and steps that a computer will implement in order to do extraordinary things.

If you doubt what I am saying, watch the video below, which will provide definitive and overwhelming proof that software is the end all be all of innovation in the 21st century and beyond.

Michio Kaku, a Physics Professor, author and frequent contributor on various TV channels and shows, explains that a computer can translate the signals that emit from the brain and instantaneously interpret what the individual is thinking and wishes to do. This can then be translated into instructions delivered to a wheel chair, allowing for movement. Anyone with an open mind has to see that this is an extremely useful and potentially life altering innovation for many disabled persons, and many elderly persons. Anyone who is objective also knows that it is not “a computer” that does this, but software. It is the software that is loaded onto the computer that allows the computer to collect the information, process the information, understand the information and send commands to the wheelchair for it to operate. Whether you like it or not, a computer is nothing more than software operating means. Software is what allows for this revolutionary innovation, and to say that it is not patentable, refuse to acknowledge that software related inventions are patented every day and/or to refuse to acknowledge the overwhelming benefit that an innovation like this possess is nothing short of ignorant.

My friend mentioned above actually wrote:

I am puzzled why supposedly educated people cannot be analytical and open to the fact that steam engines are obsolete and the new engine is software. Hello!!

I share this puzzlement, but then again, many things puzzle me any more. I tend to think that most who are against software patents are mathematicians and computer scientists, and to them the magic is in the hardware, and they focus on translating source code into machine readable object code which is all 1s and 0s, and binary code is mathematical and… STOP! This is not an episode of Numb3rs! This is real life and in the real world machines, like computers, cell phones, iPods, satellites and so much more are unique not because of the physical structure or make-up, but because of the software they run!

I will never understand the fear, hatred, need to outright lie and mischaracterize an entire class of innovation that can and does provide revolutionary advances. The only conclusion I can come up with, and it is only because I hear it all the time from the anti-software patent crowd, is that they feel they suffer unjustified constraint on creativity when they are not allowed the full freedom to code however they want. If you ask me, this translates to: “I am too lazy to do anything other than what pops into my mind first, and it is too hard to actually educate myself with respect to what a patent covers, so I want to copy without penalty.”

Indeed, it is hard to take the anti-software patent crowd seriously, and the only reason to even address this issue is to make sure that they do not steal an entire industry and innovation trajectory by pumping the public full of suspicion and animosity. This type of fear mongering has always gone on, in politics, in religion, in nationalistic debates, and now with respect to patents. How and why the ferocity that is brought to political, racial and religious debates has found its way into our industry is beyond me. There have always been people who ignore truth and fear progress. The world is not flat, the sun does not revolve around the earth, with at least 125 billion galaxies there is almost certainly some other life forms out there, and believe it or not, software is not evil and it ought to be patented, because software is the new engine and any other view simply ignores reality.

The Author

Gene Quinn
is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. Gene is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 50 Comments comments.

LaurenceJuly 2, 2009 8:42 am

You’re talking as though patent is an inherently good thing. Unfortunately, the nature of patent law does not recognise certain realities in the software industry, most notably the speed with which innovation occurs. That speed was due in part, during the 70s and 80s, to the lack of patent law. Bill Gates himself once said that if patents were used then the way they are now, the whole industry would have been at a standstill. We wouldn’t see some of the amazing technological developments we use on a daily basis in 2009.

Patent law, as it currently stands, does not properly recognise the realities of the software industry, and it most certainly doesn’t engender the kind of innovation that has resulted in the “magic” you refer to. The greatest leaps and bounds of software engineering came before patent was even considered for software. Indeed, some of the greatest software innovations being developed as I type are in open source software, where patents don’t hinder the ability to be freely creative.

Things have changed, and software is as unique an endeavour as it is ubiquitous. It’s time this was recognised in the way the law treats it. Nobody is saying people should not be awarded for their work or that there shouldn’t be commercial incentives. Indeed, patenting of software in fact _removes_ incentives – it allows those with the patent portfolios to grow fat on their out-of-date and poorly-designed software ‘solutions’. In such situations patents help no-one but that select few – and who can argue that that is a good thing for the industry or society at large?

Gene QuinnJuly 2, 2009 10:39 am

Laurence-

I don’t think you know your history. Software patents have been obtained since the 1970s, so it is really impossible for you to be correct when you say “the greatest leaps and bounds of software engineering came before patent was even considered for software.” The only way that statement would be correct is if you are claiming that software grew greatest in the 1960s and earlier, which is simply factually incorrect.

Whether anyone wants to admit it or not really is of no consequence to me. Patent attorneys have protected machines that operate in a certain way for at least 4 decades, and the operative and driving force of those machines has been and always will be software. It is truly a shame that the courts require us to ignore the reality and patent systems and machines rather than what is really at the heart of the innovation is software. Nevertheless, whether you call it a machine or software it doesn’t change the reality, and that reality is that software has been effectively protected for the last 4 decades.

-Gene

Softwareman loves patents!July 2, 2009 11:24 am

Gene, as you wisely noted:
“Talking to such a lunatic fringe is hardly worth the time it takes, …”

So don’t bother answering Laurence and his ilk.

Gene QuinnJuly 2, 2009 11:28 am

Softwareman-

Good counsel indeed. Sometimes I just can’t help myself. My kryptonite seems to be crazy arguments from those who hate patents and think that innovation would happen at a greater rate if only there were no exclusive rights. That is like fingers on the chalkboard to me, and particularly disturbing given certain trends I am seeing developing in the judiciary and executive branches of government.

Thanks for reading.

-Gene

AdamJuly 2, 2009 12:11 pm

Gene, correct me if I’m wrong, but my impression is that it was very rare for software to be patented in the 70’s and it wasn’t until Diamond v. Diehr in 1981 that it was even certain that software itself could be patentable. As you are apparently a fellow student of computer history, you know very well that there’s a strong case to be made that “the greatest leaps and bounds of software engineering” were made before 1981. If we extend that date out to 1990 or later, since software patents weren’t overly common throughout the 80’s, it’s almost certainly the case that the the most significant strides in software engineering were made before software patents were common. Of course, this may be completely unrelated to patents, it may just be that those were the first 30-40 years of computing, so the big things were discovered first.

Cliffs notes: software patents are just like other patents, patents have had little effect on software innovation, it’s pragmatic to ignore patents if you’re building new software, and patent trolls are evil.

Gene QuinnJuly 2, 2009 1:06 pm

Adam-

I think it is fair to say that the patenting of software was rare in the 70s, but I have not done any kind of statistical analysis. There was such clever drafting back then to get protection after the Supremes got it so miserably wrong in Gottschalk v. Benson. I discuss this at:

So what attorneys did was cleverly protect machines that had useful functionality, and I am not sure anyone has gone back and really tried to figure out whether the computer patenting that went on in the 70s honestly related to advances in hardware or in the function of the hardware, which would have been attributed to what we all call software.

My objection to all of this is basically I do not like being intellectually dishonest. Given the way the USPTO is interpreting Bilski software is getting patented, and you can virtually call it software as long as you use the “magic words” in the claims. Back in the 70s you had to act under the fiction that the hardware was what was unique in producing the function. I am not a fan of mental gymnastics for the sake of it, but if that is what it takes then fine. I just think so much is wrong with the greater legal and justice systems, and much of this seems spurred by not being able to be honest and truthful. If it is black… say black… if it is white… say white… why we have to characterize things as varying shades of gray just seems crazy to me.

I will take a look at the link you suggest, but that seems about right to me. I would add one thing though… if you are going to ignore software patents you best have some of your own that could be used in a trade should you get called on infringement grounds.

-Gene

TomJuly 2, 2009 1:42 pm

Gene,
A wiser man than I once wrote that a successful computer program is one that makes the machine you’ve got into the machine you want. And that concept can be nested: one that makes the program you’ve got into the program you want.

Gene QuinnJuly 2, 2009 1:58 pm

Tom-

That is brilliant! I love it! That is exactly right, and very insightful. I am going to use that in an upcoming article.

I hope all is well.

-Gene

LaurenceJuly 2, 2009 5:03 pm

Although the legal framework was in place, the practice was not anywhere near as common (or destructive) as it is now, just as Adam said.

Again, you’re not actually giving any good reasons for why software should be patented. As Jacob LJ said in Aerotel here in the UK, “[j]ust as with arms, merely because people want [patents] is not sufficient reason for giving them”. Indeed, just because software might prima facie appear to be the kind of thing that could be ‘protected’ by patent, it doesn’t mean it should be. Such tunnel-vision helps no-one.

As for me and “my ilk”, I am simply a technology enthusiast interested in the law Doing The Right Thing. I’ve given some very brief reasons as to why patenting software is a bad thing, as did Adam, but there appears to be no contrary position given here. Having the tools (i.e. a patent portfolio) to trade with the big boys in the patent thickets isnt’ a good reason for patents from the outset – it is a result of their poor suitability for this area of innovation.

AlanJuly 2, 2009 5:06 pm

Hi Gene,

In the the UK, there was a software case that was filed in 1962 and granted as GB 1039141. It related to a computer for solving linear programming problems.Thiscase is to my knowledge the first software patent.

When I meet someone that is anti “software patents”, I usually ask them for the keys to their house – as they obviously don’t mind others using their property. When considered like this they usually say oh well that is different that is real property. I explain that someone has spent time and effort developing the software that they are using and why should that person not be able to stop others simply copying it or using the concepts underlying it.

As for Bill Gates – he quickly realised that IP was very important to protect his software. He wrote an open letter to a computer magazine explaining the thousands of dollars he had spent developing his first software and that it was not right that others simply copied it. (This goes a long way to explaining why microsoft are reluctant to share thier source code!)

Anyway, in my opinion, the anti software patent lobby is too well funded to be anything other than a front for other large businesses that see servicing free software as their revenue stream rather than selling software as a final product. There are several very large companies that fit this description.

I see so many SMEs caught by the open source trap – yes the software they use is free, but in some cases by using it they also agree to give up all their own IP rights. Disastrous for an SME. How can they then stop one of the large players from developing similar software.

Worse still, implementing open source software can result in infringement of someone elses IP rights. Many SMEs do not understand this – they think that it is open source so it must be free to use. Yes but what if the person that wrote the open source software was not the first to come up with the idea and the guy who was first patented his software? It is a minefield. Perhaps that is why those behind open source software do not want software patents!?

Fabio CapelaJuly 2, 2009 5:15 pm

Given that any computer program can be reduced to a set of mathematical equations acting on input data (a transformation process studied by electronic engineers, for example) I can’t see how anyone who has studied both mathematics and programming can say that software is not math. Of course, for most reasonabily sized programs the set of equations and input data would fill a rather large volume, but despite it’s size it’s still mathematics.

BTW, I don’t think most programmers would accept jurisprudence, or even law, as thruth in that matter. The earth will not become square only because a judge, a court or even the congress says so. If you want to convince programmers and mathematicians that software is not math, you better not rely on jurisprudence for your proof. After all, both the lawmaking and judiciary processes are notorious for not “getting” tech right 🙂

Besides, the cost of properly taking the patent system into account seems to be just prohibitive in the software field. I don’t know anyone that claims to do so, in fact I mostly hear that lawyers usually tell programmers to never look at patents in order to avoid liabilities, and this thrend seems to be even more consistent inside bigger companies, the same ones one should expect to be better prepared to use the patent system for their benefit. As far as I know, paying a lawyer to determine if a reasonabily sized program is infringing any known patent can easily be more expensive than developping the program in the first place, and specially so for smaller companies and individual developpers, so for the most part developers are just ignoring the patent system and hoping they don’t get sued; even if they do get sued it’s usually cheaper to just settle out of courts than to do due diligence in the first place.

After all, anedoctal evidence that lawyers usually tell programmers to never look at patents to avoid the risk of a wilful infringement judgement seems to me like strong evidence that at least some of the positive aspects of the patent system are simply lost for software. After all, a large parte of the patent deal is that the inventor gets the time limited monopoly in exchange for providing usefull information on the patented invention; if the provided information is not usefull, or even if it is just not used by anyone else in the field, then the patent system is clearly not providing the full benefit that justifies it’s very existance.

Gene QuinnJuly 2, 2009 6:20 pm

Fabio-

The trouble with your assertion is that the premise is incorrect. A computer program cannot be reduced to a set of mathematical equations that act on input data. Software code provides instructions on how the machine will handle information and data, process that information and data and transform the information and data. It is simply not correct that software code can be reduced into mathematical equations.

I know there is a line of thought out there that software code can be proved, but most would recognize that is being over simplistic, and simply not the case in most situations. At best, this is a hypothesis and has not even reached the scientific state of a theory. There have been simple programs that could be proved, so the hypothesis goes that if that is the case then all computer programs can be proved. There are a great many steps between here and there, and it seems relatively clear to objective persons that the “proving” of a computer program is coincidence and not descriptive. If it were descriptive it would be repeatable, which it is not.

Software is far more than math, always has been and always will be. Software requires understanding of the human user, the glitches that will occur, hang-ups that are inevitable and must be treated as a quasi-organic application because it will be expanded, scaled and tested when it interacts with other programs that may or more likely may not be compatible. Writing effective software requires an engineering and problem solving mentality, and that always comes down to far more than a mathematical equation. 1 + 1 will always equal 2, but trying to get computer code to repeatedly come out with the same input in an ever evolving climate of incompatibility is a real challenge and what makes software inventive.

I doubt we will ever agree on this point, and I do appreciate your comments. I agree that most programmers would not accept law as truth, and that may well be why they openly choose to say that software is not patentable and cannot be patented and never has been patented, all of which is objective incorrect. Just because they wish it so doesn’t make it so.

Hoping you don’t get sued is a naive approach. That is why they should not ignore patents and should get as many of their own as possible. If you do not have patents and are infringing you are a target. If you have patents and are infringing you are an equal. Big companies infringe all the time, and in fact computer or software patent infringement cases are rare, unless they find a player in the industry is infringing and that player has no patents to fire back with.

Like it, hate it or wish to ignore it, the best thing the anti-software patent crowd could do is get their own patents, at least a few. Think of it as an insurance policy, shield or deterrent.

-Gene

Gene QuinnJuly 2, 2009 6:28 pm

Alan-

It is funny how open sourcers want patents and bemoan pirates! I like your keys to the home analogy. It will never convince them though, but others with open minds will get it. The trouble is that when faced with logic that is irrefutable they typically resort to things like “yeah… well the sky is green.” Obviously this is illustrative, but they turn to things that are irrelevant and objectively incorrect in and of themselves. We need to keep up the fight to make sure decision makers are not swayed.

It is also really odd how everyone (including myself) knows that Microsoft software is so inferior to competitors with respect to many applications, yet the software folks don’t like patents and don’t want them. It is a wise IP foundation that created the Microsoft monster, and we can argue and debate whether that should have happened, but it did. Patents and IP in general create a dominance. All successful tech companies have IP, and all those without IP are unsuccessful.

This whole IP = dominance thing is repeating itself in digital music and music players. Apple is dominant there because of their patent portfolio. That is why they and only hey have the cool accessories everyone wants.

For those who want to succeed, you need patents. That simple.

-Gene

Gene QuinnJuly 2, 2009 6:35 pm

Laurence-

Come on. How can you say with a straight face I am not giving any good reasons for why software should be patented? Of course I am. Are you like the Monty Python character I described? Lets at least TRY and keep it real, shall we?

In case you were being serious, here are my articles on software. See:

Obviously I have made an overwhelming case for patentability, and it is the anti-patent crowd that continues to provide nonsensical arguments that ignore truth and reality in the name of an agenda.

I think the problem here may be that you and other anti-patent folks REALLY want to talk about what “should be” as you mention in your comment above. Go for it. Talk about what should be, but while you are doing it can you at least try and keep it intellectually honest. There is no way anyone will take you or anyone else seriously if you continue to say software is not patentable, or software is math.

With respect to contrary positions… if you or anyone with a contrary viewpoint can put together an intellectually honest article I will post it. It must not tell any lies, must not mischaraterize and needs to keep it real. I think the likelihood of this happening is asymptotically approaching zero, but hey… the offer it there. I really would like an alternative viewpoint and have published stuff like that in the past.

The reality is that software should be patentable, and you and everyone else really just has problems with too much software being patented and software that is not truly innovative being patented. I agree wholeheartedly with that, but that does not mean that no software should be patented. That is an extreme position without any justification.

-Gene

breadcrumbsJuly 3, 2009 9:44 am

Regardless of whether Laurence “knows his history” or not, his view is typical of those who are blinded by a preconceived agenda and, as Gene has pointed out – and I have witnessed first hand in in-depth discussions last November and December on the lost blog pages, his view is typical of those who will refuse to listen to reason or refuse to put forth a fully cognizant position that can or would answer the pro-patent points.

Typical of such rants are clear errors in basic logic, which are astounding to this particular field that depends on logic.

A small example: Laurence in the same paragraph that decries the lack of engendering innovation, crows about some of the greatest innovation being developed. He is not talking about developments in the pre-(software) patent era. Yet, Laurence would have the greatest leaps and bounds placed in the pre-(software) patent era. Clearly, the exponential growth – including the open source software movement, has occurred in the post (software) patent era. Sorry Adam, but I have never seen a case that supposes as you do that the most significant GROWTH and promotion of software happened in the early days. Hardware and software advances in the software arts have clearly been exponential.

In fact, the very existence of the open source software movement is a direct result of pro-software patenting. Ironic that an aspect of “promotion” that is actively engendered in the concept of providing patents is that such vehicles will spur “work-arounds”, and the anti-patent people aggressively pursuing “work-arounds” is in fact an ideal validation of the patenting model.

Laurence also reveals his agenda driven drivel with the comment about “just as with arms”. Clearly the UK bias prevents Laurence from understanding US Law and the concepts of US rights. I would suggest that Laurence take off his “I’m doing the Right Thing” self-delusional blinders and do the right thing by taking the time to understand what the Law is and why we have the Law as it is. As is often the case, as Alan points out – the anti-(software) patent people are also anti-patent as well, and anti personal property. Everything in a commons (communist) would be fine with them. I am not “red-baiting” – I am merely pointing out that their agenda has a basis in an idealism that has proven itself incapable of pragmatically existing in the real world. Sure, the Pollyanna Right Thing would be for everyone to be nice to everyone, work their hardest and share everything with everyone. Not going to happen.

Fabio,

What you propose has been discussed, and discussed at great length. Unfortunately, many of the well played out arguments have been lost (Gene, still no luck in resurrecting those December comments?). The difference between applied math and pure math was one of those well-developed discussions.

Suffice it to say, you speak in ignorance of the Law, as well as ignorance that Patent Law is filled with people with feet in BOTH worlds – tech and legal. It is past the point of irritation, at least for me, when I hear anti-patent proponents who understand only the technical side say that software is math. It is a sign that the proponents’ argument lacks any credibility in the legal world of patents and intellectual property law. It is a sign that the proponents care so little about the actual situation and are driven only by an anti-patent agenda without basis in the Law, that the proponents can be dismissed out of hand.

Even given this out of hand dismissal, you do bring up a conflated point that drives me nuts about Big Tech and the willingness of “my” side to follow big tech’s money. The ridiculous “don’t even look” mentality strikes at the very core of the quid pro quo basis of having patents. Big tech in trying to evade the legal consequence of ripping off others would rather turn a blind eye to the public disclosures of patents. I would argue for a fundamental change in that published patent disclosures would be considered known or expected to be known, especially in related tech designated fields. All patents and most patent applications are published. The data from these publications should be mined for the next level of advancements, not ignored for selfish CYA reasons.

But taking the position that choosing to ignore the benefits afforded by public disclosure should drive the very unpatentability of software in general is like buying into the perverse logic of the “fairness” coalition. It never cease to amaze me how the very same people who hate MS, so easily buy into the MS doctrine that strong patents are bad, that “software” patents are bad, that learning from the publications of patents and patent applications is bad.

Standing in only one world (tech) and arguing in ignorance that the legal world is wrong, while ignoring the basis of the legal world defies logic. For tech people who pride themselves in understanding logic to behave so illogically is truly ironic.

Gene QuinnJuly 3, 2009 11:15 am

Breadcrumbs-

I was just thinking about the old comments again. The comments are apparently lost forever. I know that is absurd, but it is one of the reasons I wanted to take over management of the blog from PLI. As the administrator I only had access to the latest 20 comments, and then with great protest the latest 50 comments. So when we would get hit with 100 or 200 spam comments at a time, which was frequent, I couldn’t remove them because I couldn’t access them. I never had those privileges. And then when I took over it seems that the computer folks decided to delete all of the old posts. I can’t imagine why they did that (tongue firmly planted in cheek). What goes through the mind of a programmer? Who knows? I think they feel challenged by someone who knows more about their job then they do, which I also think is an current running through any debate with folks who say “well since you are not a computer scientist…” No… I am not! I am an electrical and computer engineer, which means I know far more then they could ever comprehend.

-Gene

markitJuly 5, 2009 4:23 pm

So with software patents and that machine, disabled people will be able to do only things that are not patented in software they are using, or have to take license for that… at least, they have to find a way not to let those disabled people to even THINK about a patented idea, since could be executed by the software and that way infringe a patent…
Or also:
“Anyone who is objective also knows that it is not “a computer” that does this, but software. It is the software that is loaded onto the computer that allows the computer to collect the information, process the information, understand the information and send commands to the wheelchair for it to operate.”
can be translated in:
“Anyone who is objective also knows that it is not “a brain” that does this, but thinking. It is the thinking that is running into the brain that allows the brain to collect the information, process the information, understand the information and send commands to the arms for it to operate.”
So why not patent thinking also? Or you already have patented this idea and are going to sue me?

Gene QuinnJuly 5, 2009 4:49 pm

Markit-

You obviously do not understand patent law. You seem to be suggesting that disabled people would have to take a patent license to think. This is the exact fear mongering that causes people to turn against patents and innovation based on irrational and harmfully misleading information presented by those who really don’t understand what they are saying.

Just so we can be clear and attempt to keep a modicum of reality, when someone purchases a product that is covered by the patent they have the right to use it and even the right to sell the product to someone else. When a patented product is sold the buyer acquires all the rights to the product, can repair it, use it and when done with it sell it to someone else without the permission of the patent owner. So it is categorically incorrect to say that disabled people wound not be able “to even THINK about a patented idea, since could be executed by the software and that way infringe a patent…”

If you buy one of these machines, and the machine has software on it, you are good to go. Of course, if you would prefer to live in a world without patents of any kind, or without software protection for innovations, that necessarily means innovations like this will never happen. These types of innovations cost a lot of money, and if the owner of the right cannot prevent others all they do is invest extraordinary amounts of time and money and then others, who are lazy, can copy what they create without penalty. To economists this is known as the free rider problem. Those who are anti-patent enjoy being free riders and would rather we live in a world without technology. If that is your personal preference fine, there are plenty of countries and geographical areas where you can do that, but don’t ruin it for the rest of us who really understand the law and the need to provide incentive to get the type of life altering and life saving innovations that patent law is intended to foster.

-Gene

LaurenceJuly 6, 2009 4:47 am

@breadcrumbs

Ah, yes, because the US of A is the only jurisdiction in the world affected by this, right? You talk about *me* being blinded? Bear in mind that American practice, particularly in this area, has repercussions across the globe. Perhaps it’s too much to expect you to see beyond your own shores.

The deference here for the status quo as opposed to a normative outlook is quite staggering.

And what’s this about agenda?! I don’t have an agenda at all – perhaps I don’t have all the facts, something I’m willing to concede, but I’ve arrived at my position on the basis of my own feeling and research. I don’t follow an agenda at all – your ad hominem attacks are pretty shocking.

For the record, I am not anti-patent or anti-personal property, and to bandy around the word ‘communist’ is frankly laughable and demonstrates precisely the kind of knee-jerk agenda you claim not to have. Software patents don’t help the vast majority of the software industry innovate. That’s a fact. Only the guys at the top get to freely go about their business.[1]

The “Idealist’s Model” has certainly not shown itself incapable of working in the real world – it hasn’t had a chance to. What has been shown to be unsatisfactory, as evidenced by the length and depth of the software patent debate, is that traditional patent IP rights do not adequately reflect the realities (there’s that concept you like) of the software industry.

It’s clear, given the way that I have been personally pounced upon and derided (as opposed to my views) that this blog is a soapbox for a given point of view and not a place for reasoned discussion. It’s really quite sad to see.

I’ll end my involvement here by citing myself. If you can be bothered with rational discourse, you might like to note some of the many citations within the article. Perhaps what’s needed here is a bit of academic rigour.
[1] LE Diver, Would the current ambiguities within the legal protection of software be solved by the creation of a sui generis property right for computer programs?, 2008 (3) JIPLP 125 (http://jiplp.oxfordjournals.org/cgi/content/abstract/jpm228v1)

Gene QuinnJuly 6, 2009 12:05 pm

Laurence-

You say: “this blog is a soapbox for a given point of view and not a place for reasoned discussion”

There is no reason to resort to hyperbole, or outlandish statements that are not based in fact just to make yourself sound like a victim. That is not very becoming, and really quite insulting to me and those who are regulars here. Just because you disagree with those of us commenting doesn’t mean there can be no “reasoned discussion.” Your view on this is peculiarly liberal, and seems synonymous with “if you don’t agree with me it is not a reasoned discussion.” First level understanding, when pushed, often retreats under ill defined and irrational accusations. The failure of reasoned discussion is almost universally the fault of the party who claims there is no reasonable discussion.

In my opinion, a sui generis property right for software would be a splendid idea. Right now it takes many years to get a patent issued and in many cases the software is outdated by the time a patent is issued. A sui generis right that can be obtained quickly and that lasts for the useful life of the software makes a lot of sense. I have written for years that we need to get away from a one-size-fits-all patent system. Software doesn’t need 20 years of protection from the filing date, and in many cases the length of pharmaceutical protection is woefully inadequate in order to provide the incentive to create the truly life altering treatments we need. That is why so many drug companies are focusing on lifestyle drugs. With lifestyle drugs there is no legitimate argument under international agreements that a country could take the drug and ignore the patent, and they sell exceptionally well. What we need are incentives to create new antibiotics and vaccines, among many other drugs and treatments.

-Gene

breadcrumbsJuly 6, 2009 3:29 pm

Excuse me Laurence if I sound a little harsh, but victimhood runs a little thin as an excuse.

Before you castigate me for attacking you, you should realize that I was merely responding to your own off-point, to the edge of ad hominem and “all holy” comments such as “[j]ust as with arms” and “Doing the Right Thing”. If you want to stick to the discussion points on law, I will gladly abide. If not, then the gloves are off as they say.

If you wish to discuss normative outlooks, than by all means you should not assume that readers of an American blog discussing “software patent” issues in the US of A jurisdiction would blindly extend that discussion to any and all jurisdictions in which the repercussions may follow. Simply somewhere in your comments please state so. That way I will know that you wish to discuss something other than US of A law. Your own ego is quite staggering. Just because you have been published in the Oxford Journal, it is still too much to expect anyone to read your mind.

I would also beg to differ as to having an agenda. Your link clearly shows an agenda. That you may have arrived at this at your own feeling and research, does not make it any less of an agenda.

The bandy about of the word “communist’ also is on point as to the larger scope and discussions on these boards. Try to remember that the discussion is not only about what Laurence has written – I do reference the fact that the points you make have been discussed before and please recognize that I am addressing more than just you.

Stepping off the soap box, I notice that you have commented on the perceived slights, but have not commented on any discussion points of law in my post. You might let go of the shield of victimhood and actually respond to the substance. Supply your reasoning rather than your assumptions or cries of being picked on. This is a legal forum, not an academic forum – you should be able to handle a little “pointed” conversation.

J.E. RendiniJuly 6, 2009 4:21 pm

Gene:

I’m not a regular here and not even a patent attorney, so you’ll excuse me if the following question is somewhat naive. But, if patent protection for software is problematic, why wouldn’t copyright protection be appropriate?

BTW, I love America, private property and firearms. Honest-to-God.

Gene QuinnJuly 6, 2009 6:01 pm

J.E.-

Very good question. Software is quite unique in terms of innovation. A copyright should ALWAYS be obtained in software. I cannot stress that enough. The cost is very cheap ($45) and even if you hire an attorney so you do it right you are talking about maybe 1 hour of attorney time, so for right around $300 you can get an application filed correctly and on your road to a copyright.

Copyrights are very strong in one way, namely they last forever (as far as anyone alive is concerned at least). They last for 70 years after the death of the creator. They are very weak though in that there can be fair uses that do not rise to the level of infringement, and very weak for software because you are only liable if you are infringing, and for copyright infringement that means you have to copy the code. If you have a copyright in software and I say “that is cool, let me make a program that does the same exact thing,” I would not infringe your copyright unless I cut and pasted the code you wrote. So if I write my own code to do what your software does there is no infringement. So copyrights in software capture the lazy copyist, not the energetic “I can do that too” person, which is far and away more common.

A patent in software focuses on the functionality and how it is accomplished. You write software patents as methods (largely) meaning you describe how the software step by step delivers the functionality, paying attention to also describing any hardware that is necessary to collect, store or display computational results. So a software patent is probably best thought of as a system for achieving a certain computerized functionality using databases, memory, displays, graphical user interfaces, etc. etc. What makes the system work is the software, so that becomes the “automated intelligence” that turns otherwise dumb hardware into cogs in the wheel, so to speak.

If you get a patent on software and I say “that is cool, let me make a program that does the same exact thing,” then I am infringing your patent right even if I write my own code and create my own overall system architecture without knowing anything about yours. So if you are a business that has custom software that you have created and are selling or implementing via mass production or via customized installs and service, you need both a copyright (easy to get) and a patent (much harder to get, but very possible with the right attorney involved).

Finally, copyrights protect expression, and source code is expressive. It can be brute force, or it can be eloquent. Case law has said source code is entitled to First Amendment protections. This comes up in the encryption era Department of Commerce cases where they were restraining speech by limiting encryption software. Patents protect useful and tangible innovations. With software it is the “tangible” that has been problematic for courts because they are use to feeling something. But what Judge Rich said in State Street in 1998 was that a unique output of data or information can meet this requirement, so he said in order for software to be patentable it must have a “concrete, tangible or useful result.” It sort of blurs things a little, but if you have information in, mass computational processes and automated analysis, then usable information out that is different than the raw data in, then you have something patentable under State Street.

I personally think the Supreme Court will go back to more of a State Street analysis, but will likely kill mental processes and mental business methods.

-Gene

breadcrumbsJuly 6, 2009 6:09 pm

J.E.

You made me smile – Honest to God.

AdamJuly 7, 2009 7:59 pm

Wow, it seems I missed some brisk discussion over the holiday weekend. Although I’m late to the table, I’ll comment on a few of the things that stuck out at me:

“When I meet someone that is anti “software patents”, I usually ask them for the keys to their house – as they obviously don’t mind others using their property.”

Pretending that Intellectual Property is the same as physical property does not help further the discussion. They are equal neither legally nor philosophically. The equally absurd converse of this question is, “Would you let millions of people sleep in your bed with you if they all paid you a small fee or waited for a few years after you built it? If not, you obviously are against patent licensing and patent term limits.”

“someone has spent time and effort developing the software that they are using and why should that person not be able to stop others simply copying it or using the concepts underlying it.”

Again, this is irrelevant. Neither the law nor ethics demand control of something just because you put effort into creating it. If someone spends a lot of time and effort coming up with a new way to pronounce certain words, that does not mean that they can control people speaking those new pronunciations.

Gene, thank you for laying out some reasons you think software is different from Math. I haven’t been reading the blog for all that long, so if you went to the effort to repeat old thoughts, thank you for that as well. I don’t think your points are factually correct, but I appreciate hearing them.

“Software code provides instructions on how the machine…”

Depending on the language used, the code may not be related to any machine, or even machines in general. Almost all modern computer languages must be translated from the human-readable code in which they are written to code the computer can understand. And of course, there’s always the related practice of using Natural Language Processing to make human languages drive computers.

“Sorry Adam, but I have never seen a case that supposes as you do that the most significant GROWTH and promotion of software happened in the early days.”

The most significant growth in software usage has clearly been in the last 25 years, though even if that were relevant, correlation does not imply causation. The growth of email spam has been most significant since the rise in popularity of software patents, but I would attribute that to other causes. But it’s not relevant, because what we want to encourage with patents is innovation, not usage. And it’s pretty hard to make a case that more software engineering innovation happened after 1990 than before.

“the very existence of the open source software movement is a direct result of pro-software patenting”

This is surely not historically accurate, even if you really mean the Free Software movement (rather than the much more recent Open Source marketing movement), which I suspect you do. Free Software as a specific movement was created because of the realities of copyright law, not patent law. And sharing software code without protecting one’s IP rights was a cultural norm before the first software patent was ever granted.

“It is past the point of irritation, at least for me, when I hear anti-patent proponents who understand only the technical side say that software is math.”

To be fair, we usually don’t think the statement “software is math” has anything to do with the law. It may have legal implications, and I think it should, but that particular statement is no more talking about the law than saying that “trees are plants.” Now what comes after that, namely that software should therefore not be patentable, is clearly a legal statement, and I’m sure we have plenty of ignorance on the legal issues at play there. However, most of us are naive enough to think that you shouldn’t have to be a lawyer to understand law in a general way, since you clearly don’t have to be one to write it.

“I am an electrical and computer engineer, which means I know far more then they could ever comprehend.”

I love this. The hubris of saying your undergrad EE degree means you know more about software than everyone in the field tickles me to no end.

breadcrumbsJuly 8, 2009 11:05 am

Adam,

I will resist my urge to be snarky, even though last December when I had an intense, quite lengthy, and (I thought) open discussion with an anti-software-patent proponent, it turned out that the person had an ulterior agenda, failed miserably to actually be open-minded and misrepresented our discussion over at Slashdot or some other anti-patent site.

You responded to the keys to the house analogy with “Pretending that Intellectual Property is the same as physical property does not help further the discussion. They are equal neither legally nor philosophically. The equally absurd converse of this question is, “Would you let millions of people sleep in your bed with you if they all paid you a small fee or waited for a few years after you built it? If not, you obviously are against patent licensing and patent term limits.”

I think that you dismiss the analogy too quickly. As patents are business tools, the property analogy perhaps could be better put as keys to hotel rooms. The converse questions you pose are non-sequitors to the original analogy, but are aptly answered with the proper setting. You do have a grasp of logic and wit, which is joy to read, but your lack of law really hurts your arguments. This is where having a foot in each world – legal and technical, pays off.

But more to the point, both legally and philosophically, patents ARE very analogous to physical property. Your conclusive statement is simply wrong.

You also dismiss as irrelevant the time and effort in development. You incorrectly align this with a time and effort towards a pronunciation example. The problem is, your example doesn’t fit what software is. Software is a tool. It is meant to do something useful (and perhaps tangible). Therefore, the proper alignment is indeed with other items, that in their overall category, are properly covered by patent Law. You may not agree with this, but your agreement or approval is what is irrelevant.

You also hand waive away the important growth and promotion of software with a gesture to volume only. Yet you provide no substantiation to your conclusive statements. You dismiss relevance and beg for causation correlation, yet offer not a scintilla of either for your agenda driven statement. I offer not only volume, but variety and level of complexity. Open your eyes, look around – your statement simply doesn’t wash. “And it’s pretty easy to make a case that more software engineering innovation happened after 1990 than before.” – fixed your quote for you.

I will ask for forgiveness with my overstatement about the very existence of the open source software movement, but none-the-less, the point I make with that statement is indeed true – part of the desired promotion from the patent Law is efforts directed to work-arounds. So in a very real (although perhaps not direct) sense, the very existence of the open source software movement is a direct result of pro-software patenting.

Your discussion on my point concerning anti-patent rhetoric of the software-math question is very telling. You back away from the legal sense (we don’t think…has anything to do with the law”, “…is not more talking about the law”, “…and I’m sure we have plenty of ignorance on the legal issue…”), yet the software-math question is directly being used as a legal argument.

Perhaps it is your hubris that is showing to think that your naiveté does not matter when you are discussing one of the most complicated arenas of law. That is exactly why I do not give any credence to what such people say in a legal discussion – they have abdicated their legal standing. I have said this before, (and I took Gene’s comments in this light) having both a technical understanding and a legal understanding allows one to engage in a legal discussion concerning technical matters infinitely better than someone ONLY having a foot in one of the two worlds. It is not that you are stupid – you are merely ignorant. Persisting in ignorance though, now that is stupid. And while I am past the point of irritation, I am not tickled by others’ stupidity.

Gene QuinnJuly 8, 2009 11:49 am

Adam-

You say: “And it’s pretty hard to make a case that more software engineering innovation happened after 1990 than before.”

I would love for you to present evidence. So often computer science folks make great statements as if we are to accept it as true. I think this is clearly incorrect and would love to know what you mean and see your proof.

You say: “Almost all modern computer languages must be translated from the human-readable code in which they are written to code the computer can understand.”

Exactly! Finally someone who understands! So many computer science people seem to ignore this reality. You translate into machine readable code for the computer to understand, which means you translate it into machine code that the computer follows step by step to produce the directed action/result. That is a process. The computer reads the instructions and acts accordingly. Without instructions the computer sits there collecting dust. So it is the software that causes the machine to become a specific purpose machine and the specific purpose is that purpose directed by the software. Additionally, the fact that it has to be translated into binary readable by the computer necessarily means the software code is not math, and only the last steps of converting commands and instructions is mathematical.

You say: “most of us are naive enough to think that you shouldn’t have to be a lawyer to understand law in a general way, since you clearly don’t have to be one to write it.”

Amen! If only that were true. Unfortunately, it is not and this is an exceptionally complicated area of law. The true hubris being displayed is by those who think they can know nothing about law and tell others who are knowledgeable in both law and science that they know nothing. That is the height of arrogance, particularly when they also ignore valid points and retreat to hyperbole and assaults when their position is exposed as weak, illogical and scientifically incorrect.

You say: “The hubris of saying your undergrad EE degree means you know more about software than everyone in the field tickles me to no end.”

There you go putting words in my mouth and twisting what I say in an intentionally dishonest way. I NEVER said I know more than “everyone,” but I sure know more than computer scientists and mathematicians. Anyone who does not understand that software is not the equivalent of math obviously knows very little about software, very little about math and has an agenda. You cannot solve software, you cannot reduce software and you cannot prove software. You can, however, write it and get it to cause a machine to function as you direct. This is a basic and fundamental concept and anyone who denies it is not seriously interested in an intellectual discussion.

Probably next week I will once and for all put all the software = math people in their place. If it is, then when I provide a stand alone section of code you all will be able to solve it or prove it, which we all know you cannot do. I can’t wait to hear the excuses for not being able to solve or prove a simple piece of code. I think I will use something like php, which is trivially easy, to prove the point.

-Gene

AdamJuly 8, 2009 12:00 pm

“I think that you dismiss the analogy too quickly.”

The foundational difference between IP and physical property is that physical property rights are about controlling a particular object (which always includes exclusivity), while IP rights are about controlling making new objects. This is why the analogy doesn’t hold. Giving someone a key to your house (or a hotel room) is excluding yourself from using the room as you would without them in it. If the person steals something, you no longer have it. If someone had a machine to make a copy of your house, and drop it down in the middle of Montana, it would be a completely different legal and philosophical question, and that would be analogous to patents. Thomas Jefferson tried to make this distinction clear in a letter once: http://www.usewisdom.com/sayings/patentsj.html

“You incorrectly align this with a time and effort towards a pronunciation example. The problem is, your example doesn’t fit what software is. Software is a tool.”

I’m sorry that my example was bad. Here’s another: if you work for a year on a new mathematical theorem, you don’t get to control how it’s used or copied. If you spent hours and hours coming up with a new philosophical framework for thinking about the world, and tell someone about it, you don’t get to control who they tell it to in turn. The point is that it’s not the effort put into an action that determines whether the person gets exclusive rights to the results of the action, it’s the nature of the results themselves. So, saying that *the effort itself* put into writing software should give the writer exclusivity is not consistent with how we treat other actions. At the most general level, we have IP law to benefit society as a whole, not to give individuals just compensation for their work.

“You also hand waive away the important growth and promotion of software with a gesture to volume only. Yet you provide no substantiation to your conclusive statements.”

Nor do you; we’re both just tossing out unsubstantiated claims. It’s a weak claim anyway, since it’d be near impossible to come up with a methodology for the comparison. However, when I think of Fred Brooks, E. F. Codd, Alan Kay, Dan Ingalls, John McCarthy, Larry Wall, Donald Knuth, Ken Thompson, Dennis Ritchie, Tim Berners-Lee, Doug Engelbart, the team at Xerox Parc, and all of the other greats of pre-1990 computing, I find it hard to believe that more innovation has occurred since then. In fact, I can’t think of a single major software innovation that has happened since then. The only close thing might be the rise of agile methodologies, or stochastic methods in AI, though both of those are really currents of thought, not particular innovations.

“Perhaps it is your hubris that is showing to think that your naiveté does not matter when you are discussing one of the most complicated arenas of law.”

I think it’s actually very important. I’m probably wrong about a lot of things related to the law. On the other hand, it’s also important that most IP lawyers, judges, and patent examiners don’t understand software to the extent that I do. However, unlike you, I don’t think they’ve abdicated their standing to speak by not being experts at everything. I think there should be discussion and mutual education. And that’s the primary reason I’m reading this blog, and others like it. I’m trying to educate myself.

AdamJuly 8, 2009 12:16 pm

“the fact that it has to be translated into binary readable by the computer necessarily means the software code is not math”

Computers do mathematical proofs. The proofs, and the related concepts, all have to be converted to binary readable by the computer. Does that mean that the proofs are not math? Much of math is a process. Much of math can be used to drive a computer. It doesn’t seem like there’s a distinction to be found here.

“The true hubris being displayed is by those who think they can know nothing about law and tell others who are knowledgeable in both law and science that they know nothing.”

So true. Hopefully, we can ridicule those guys when they show up. However, do you think that maybe some experts in software or science or something else, who have tried to educate themselves somewhat on the law, could add a useful viewpoint to discussions on the intersection between the two?

“I NEVER said I know more than “everyone,” but I sure know more than computer scientists and mathematicians.”

I never said you did. I said “everyone in the field”, which you have accurately described as computer scientists and mathematicians.

“I can’t wait to hear the excuses for not being able to solve or prove a simple piece of code.”

There are also many simple mathematical concepts that no one knows how to prove. I’m not sure what this will show.

Gene QuinnJuly 8, 2009 12:30 pm

Adam-

You say: “do you think that maybe some experts in software or science or something else, who have tried to educate themselves somewhat on the law, could add a useful viewpoint to discussions on the intersection between the two?”

Absolutely! I have invited folks with altering view points to collaborate with me and they refuse. I have offered to educate them on the law so that they can understand when they are making a clearly erroneous statement, and then it never goes anywhere. No court will ever conclude that software = math, and they don’t want to accept that. If they would accept that 100% true statement and get past it we could get to the point where a discussion could be had relating to what offends them about software patents. I think many software patents are crap, but certainly not all. If true intellectual collaboration could be had a meaningful test for patentability could be crafted that would be an exceptional improvement. The problem is they don’t want any software patents, and refuse to accept that anyone could say software is not math, so it never gets past that point unless you are willing to live in the fantasy that software = math.

You said: “I said “everyone in the field”, which you have accurately described as computer scientists and mathematicians.”

Actually, that is not accurate. Insofar as patent law is concerned computer scientists and mathematicians are not the relevant “field.” The relevant field under the law, and I believe in real terms as well, is software engineering. Those who do not understand software, what it does, how it accomplishes it and the legal ramifications are computer scientists and mathematicians.

You say: “There are also many simple mathematical concepts that no one knows how to prove. I’m not sure what this will show.”

I agree. It will show nothing other than those who claim software can all be solved and proved are simply wrong, so it will dispense with the primary reason most say software is not patentable and get all objective observers to see that this line of argument is purely specious.

-Gene

Gene QuinnJuly 8, 2009 12:34 pm

Adam-

You say: “I think there should be discussion and mutual education. And that’s the primary reason I’m reading this blog, and others like it. I’m trying to educate myself.”

If you are really interested in mutual education count me in. There is so much that can be accomplished through this. The real trouble with software patents is that they have in some cases been handed out like candy and without being enabled and without any true innovation. What I would love to do is create a test for determining when software should be patented, and in order to do that one needs to understand all the potential arguments against it so as to craft a tight proposal.

I have been noodling in my head and I think I have figured out under what circumstances software should be patented. I would love to get constructive feedback, but that just cannot happen when talking with those who say “the Supreme Court says you cannot patent mathematical equations, software is a mathematical equation, therefore software is not patentable.” That is intellectually dishonest or a blatant mischaracterization in order to achieve an agenda driven objective.

-Gene

AdamJuly 8, 2009 12:43 pm

“No court will ever conclude that software = math, and they don’t want to accept that.”

That may be, and it may be more useful to talk about it in those terms. If you say “software is not math,” then you make some of us want to talk about the truth of the matter, not the pragmatic limitations of the courts. If you would prefer that the software experts you interact with get over this barrier, as you suggest you do, you might want to ask us to accept that the US courts, under current US law, cannot affirm that software = math.

“The relevant field under the law, and I believe in real terms as well, is software engineering.”

Then perhaps there’s a confusion of terms here. My job title is “Software Engineer”, but I have two Computer Science degrees, one of them with a specialization in Software Engineering. Most of the software engineers I know would consider themselves computer scientists. Are you trying to single out academics in computer science fields, who in particular do not do software engineering research? Or are you just referring to people who haven’t written a lot of practical software with a significant user base?

AdamJuly 8, 2009 12:53 pm

“The real trouble with software patents is that they have in some cases been handed out like candy and without being enabled and without any true innovation.”

I think most software engineers would agree that at least this needs to change, no matter how they come down on software patents in an absolute sense. I for one, think that if we combined some good rules for determining true innovation, with your suggestion of a much shorter term limit (2 years isn’t a bad place to start), we could create a much better situation. For a number of (largely pragmatic) reasons, I would like to see legislation passed that explicitly excludes software from patents, but that doesn’t mean I’m unwilling to support steps towards more reasonable software patents, as long as they’re going to exist.

Gene QuinnJuly 8, 2009 1:43 pm

Adam-

I tend to think those with the problem are academics, and then some in industry who really want to use the work of others for free as in a free-rider scenario. Perhaps I paint with too much of a broad brush, but it is hard to understand how computer science folks so freely admit that they think there is no such thing as software engineering and that the entire discipline does not exist. I think these folks are academics and, as you suggest, those who have not written practical software for a significant user base.

I have tried over and over again, and I am sure you will see this if you search IPWatchdog.com, to explain that courts will never believe software = math and we cannot start with that as a proposition that will lead anywhere.

A separate class of software protection that takes in part from copyright and in part from patents would be ideal. I would be inclined to give liberal protections without much of a hurdle for a limited time, and if you really want a patent then you get a much more rigorous review and it had better be an innovation. Even then, I think waiting in line for PTO review for 4 years or more for 17 (or so) years of exclusive protection defeats the entire purpose. What we ought to want is everyone to apply for a software patent with a more technically realistic number of years of protection and then it would be freely usable by anyone. If you required code or detailed schematics to be provided that would bolster open source, which really is what the patent system is intended to foster.

I have to write about that. Patent law has always been about fostering the ultimate “open source” movement, but has gone quite far afield.

-Gene

breadcrumbsJuly 8, 2009 6:08 pm

Adam,

We are starting down a path I have traveled before. There is nothing at all wrong in your trying to educate yourself. But know this – educating yourself while holding an agenda will not work. You will be greatly disappointed, confused or both.

As an example, you quote (or link to) one of Jefferson’s letters. Such items must be held in context. Jefferson’s view towards patents evolved sharply during his life and you are using his earlier views probably because they resonate with your beliefs.

Further, you recognize your ignorance of the law, but persist in putting forth “the foundational difference” between IP and physical property. Again, you are seeing the question through the dogma of your beliefs. This type of “learning” is exactly what I ran into in December. I posted a simple challenge to this “open-minded” individual and received in reply over 17 pages and the net result was that the person could not “get it”, and I read his further postings on the tech blog which showed just how closed minded this person was, and how off the mark his understanding of IP law was. His only nterest in learning was in learning just enough to buttress his existing belief structure.

As you do seem to be intent on learning, I will continue to discuss. Keep in mind though, one foot in each world is infinitely better than both feet solidly in one world.

Let’s look at your new example, where you state “if you work for a year on a new mathematical theorem, you don’t get to control how it’s used or copied. If you spent hours and hours coming up with a new philosophical framework for thinking about the world, and tell someone about it, you don’t get to control who they tell it to in turn. The point is that it’s not the effort put into an action that determines whether the person gets exclusive rights to the results of the action, it’s the nature of the results themselves. So, saying that *the effort itself* put into writing software should give the writer exclusivity is not consistent with how we treat other actions. At the most general level, we have IP law to benefit society as a whole, not to give individuals just compensation for their work.”

A few fundamental errors in your new example:

A mathematical theorem is known to be non-functional material. However – the application of that theorem is definitely patentable. In that case, you DO control how the application of the theorem is used.

You also have parsed your original argument down to *the effort itself*. Such an argument will be ignored – I am treating the original thought – that the original result coming from the effort (in an applied sense of your theorem) is legally, ethically and any other way deserving of patent protection and IS consistent with how we treat other such actions. Your new example also runs to explicit things that are recognized as not patentable (laws of nature and such). Again, that is not what software is.

At the most general level, we have IP law to benefit BOTH society as a whole AND the individual. Your statement to the contrary is simply and completely wrong. When you start your learning from faulty premises, your end result will most likely end up a disaster.

You correctly point out that we both lack substantial “proof” of the contention that innovation was greater before or since 1990 computing. While you admit that “it is a weak claim anyway”, and probably not worth the effort to provide substantiation, as someone who professes to “know” the art, for you to make such a statement that you can’t think of a single major software innovation since 1990 is simply incredulous. Try harder.

I am further amazed that you think your hubris is very important. When you state that it’s important that most IP lawyers, judges and patent examiners don’t understand software to the extent that you do, but proceed to speak on legal issues in ignorance, this is simply illogical. When I speak of abdicating their standing, I speak as to legal arguments that are based without standing in the legal realm. Much as you prefer to have Gene speak a certain way in regards to “proofs”, you must remember that the legal arena has its own language requirements. When you speak of patents you are NOT in the technical realm, you are in the legal realm.

You respond to Gene as well along the dimension of hubris. You seem to fail to realize that what myself, Gene and others already have IS that understanding of the intersection between the software, science and something else AND the law. Your hubris is getting in the way of you understanding that foundational point.

The very fact that you feel compelled to use such language as “truth” in a software equals or does not equal math discussion shows that you have far to go. Additionally, it is NOT merely a pragmatic limitation of the court – it is a different world view. In order to learn that view – you must relinquish your dogmatic hold on the technical side. You cannot walk without lifting your foot and taking a step. I covered this in extreme detail in December. Remember – one foot in each world is better than both in one. I do not doubt your intelligence, don’t prove me wrong.

AdamJuly 8, 2009 6:34 pm

breadcrumbs, I’m sorry if I’ve stepped on your toes in some way. You seem pretty hung up on my “holding an agenda.” I certainly have opinions, and I understand things in a certain way, which I’ve been expressing here. You’re also expressing your differing opinions. Isn’t that how discussion and mutual learning works? How would you have me express my views without holding an agenda?

“you are using his earlier views probably because they resonate with your beliefs. ”

I referenced the letter because I thought it explained what I was saying better than I could. It would be pretty silly to use a non-sequitur to explain myself.

“you recognize your ignorance of the law, but persist in putting forth “the foundational difference” between IP and physical property.”

Please correct me, then, instead of just calling me out for communicating things the way I understand them. In what way is my understanding wrong?

“You also have parsed your original argument down to *the effort itself*. Such an argument will be ignored”

I thought that’s what Alan was saying when he brought it up, and I was responding to his specific argument. “I explain that someone has spent time and effort developing the software that they are using and why should that person not be able to stop others simply copying it or using the concepts underlying it.” Am I misinterpreting what he said?

“At the most general level, we have IP law to benefit BOTH society as a whole AND the individual. Your statement to the contrary is simply and completely wrong.”

It’s clear that it does do both, and it’s wonderful when it can, but when I read e.g. the copyright clause of the Constitution, I conclude that the societal benefit was primary. But perhaps I shouldn’t have formed my opinion on such terse verbiage from the Framers. Can you point me to other material that suggests that legislators have seen the individual as equally important?

“for you to make such a statement that you can’t think of a single major software innovation since 1990 is simply incredulous. Try harder.”

I’ve given it my best. Surely you can educate me, since you have a foot in the tech world. What recent innovations have compared to the early ones I referenced?

“You seem to fail to realize that what myself, Gene and others already have IS that understanding of the intersection between the software, science and something else AND the law.”

If you already have a full understanding, then technical experts have nothing to contribute to the discussion of the law. Are you saying that’s true? Gene seems to disagree with you.

And I apologize that I wasn’t here in December and I can’t go back and read what you wrote then. I don’t know that there’s anything I can do to rectify that situation.

breadcrumbsJuly 8, 2009 10:28 pm

Adam and Noise,

Perhaps both of you are missing some of the subtlety of Jefferson’s letter. The “property” of intellectual property is not “ideas”, nor even inventions. Rather, the property is “an exclusive right to the profits arising from them”. It is that exclusive right captured in our constitution that is the property right.

In this sense, Adam, when you speak of ideas as not property, you are technically correct, but off reference, and thus when you speak of intellectual property as not property you are incorrect. Intellectual property is property, fully so in the legal sense. Noise, while Jefferson’s stance towards patents in general did evolve over time, even his early letters supported the concept of intellectual property congruent to actual property.

breadcrumbsJuly 8, 2009 10:39 pm

My apologies for the confusion – I mixed a response to Noise from a private email with the public response to Adam. Mea Culpa

AdamJuly 9, 2009 7:31 am

breadcrumbs,

That distinction, between the rights being the property and not the invention, makes some sense to me. However, I don’t understand in what sense it is “fully property”. Are you saying the laws that apply to all other kinds of property apply equally to intellectual property? For example, can you be charged with theft, or destruction of property, with regard to IP under the same laws that govern personal property or real estate? Or do you mean that it can be bought, sold, and inherited, like other property? Or something else?

Since I know so little about the evolution of Jefferson’s ideas, I have an honest question: can you consider a letter he wrote when he was 70 years old to be “his earlier views?” At what point did his views start to shift?

Noise above LawJuly 9, 2009 10:38 am

Ha!

Now I get to laugh at the ever so careful breadcrumbs (sorry – inside joke).

If we’re going to quote Jefferson, let’s use one of my favorites as prominently displayed at the Patent Prospector:

“The fact is that one new idea leads to another, that to a third, and so on through a course of time until someone, with whom no one of these ideas was original, combines all together, and produces what is justly called a new invention.”
– Thomas Jefferson, Director of the 1st U.S. Patent Board –

breadcrumbsJuly 9, 2009 3:17 pm

“Isn’t that how discussion and mutual learning works? How would you have me express my views without holding an agenda?” – Adam, let me put it more bluntly: If you seek to learn to buttress your views, you will not learn. If you seek to learn with an open mind, you will learn. An agenda will screen what you may comprehend. This is ESPECIALLY true for intelligent, driven people, and especially such people who come from a certain culture (software). If you cannot separate yourself from the prevailing “agenda”, you will be disappointed no matter how diligent you are in your self education. Law is a different world view. It is not a matter of simply placing words in a “pragmatic” order. You need to unlearn the prejudices that are inherent in the “agenda”. I trust that you are smart enough to understand this.

“In what way is my understanding wrong?” – I cannot show you if you try to see through the software world view. You must walk before you run.

“Am I misinterpreting what he said?” – try to key on “…the software that they are using”. This encompasses more than the mere time – it encompasses the end result – the product.

“Can you point me to other material that suggests that legislators have seen the individual as equally important?” No, it is already in your grasp, but your blinders prevent you from seeing it – to use your own quote: It’s clear that it does do both” The problem comes in part from “I conclude…” when you draw your conclusions from the software perspective rather than the legal perspective. I cannot force you to understand the difference.

“Surely you can educate me” – No, this is something you need to open your own eyes and find.

“If you already have a full understanding, then technical experts have nothing to contribute to the discussion of the law. Are you saying that’s true?” – Now you are misconstruing what I said. I never said that I have full understanding or that I cannot learn from your point of view. I never have a full understanding, I can learn from your point of view and I do – What I dismiss are the factually empty LEGAL standings put forth in utter error. Been there, done that. My earlier exchanges were very enlightening to me – I do try to keep my mind open. The point, which you still fail to grasp, is that YOUR hubris and knowledge, based only in one world prevents you from your stated goals of understanding the legal view. When you started down the path of learning the technical side, did you believe that your hubris was so important? Why is it so important now?

“And I apologize that I wasn’t here in December and I can’t go back and read what you wrote then.” – I am sorry as well. I would love to have your opinion on the entire exchange, like I said, you strike me as someone very intelligent.

Noise,

You may laugh, but your quote from Jefferson is off point to a discussion of patentable subject matter – we are not discussing obviousness.

AdamJuly 9, 2009 5:38 pm

breadcrumbs, you’ve entered completely into meta-discussion and have ceased to discuss the topic at hand. Not only that, but you’re doing it in completely unproductive ways. You’re essentially just telling me to will myself to understand everything in the “right” way, which is nonsensical.

If you have any answers to the legal or technical questions I’ve asked, or any other information that might be useful to me, I’d welcome it.

breadcrumbsJuly 9, 2009 6:09 pm

Adam,

You are wrong – if you cannot lose the attitude and the agenda in your quest to learn, I am telling you that you will not learn and I will not waste my time trying to teach you.

If you want to call the ground rules “meta-discussion”, fine. You simply are not prepared to discuss intelligently the topic at hand in the appropriate context. You will not understand what is truly useful to you and only welcome what you think is useful. Of course, you are welcome to persist in such ignorance, standing firmly with both feet in one world.

AdamJuly 9, 2009 6:41 pm

breadcrumbs, it took me a while, but I finally see you’ve somehow formed an opinion about my motivations that cannot be changed. I apologize for taking so long to realize this, and having wasted both of our time in the intervening period. It’s too bad, but these things happen I suppose.

Lambda CalculusFebruary 18, 2010 11:10 pm

Obviously you’ve never heard of me, or my good buddies Church & Turing.

Oliver JonesJune 30, 2010 11:16 am

i like the idea of solving crime using Mathematics that is why i love numb3rs.`~”

PeteMay 14, 2012 10:46 am

You have repeatedly stated that software is not math. I’m sorry, but that is FACTUALLY incorrect. This is not a matter of opinion. 100% of software ever written can be reduced to a set of math problems (possibly a very, very large set) that can be worked out with a pencil and paper.

I’m not sure why you think that this topic is somehow an “opinion that can be debated”…. it is simply a fact that software is math

Gene QuinnMay 14, 2012 11:16 pm

Pete-

You are 100% correct. It is not a matter of opinion. You are wrong and I am right. Software is not math, period. The fact that you think it is speaks volumes about your intellectual dishonesty.

First, over and over again I explain exactly why software is not math in extraordinary detail. You, however, provide nothing but an illogical, irrational and completely erroneous conclusion. Is this all you have? You can’t seriously expect to be taken serious.

If software is math and it can be “worked out with a pencil and paper” then prove it. I’ll make an example of you and your lack of substantive knowledge and intellectual honesty the same way I shut everyone like you up. Solve the IPWatchdog.com homepage. It is a trivial set of html and php code, so this should be child’s play compared with the elaborate, unique and patentable software systems that exist in the world.

Of course we both both know you are wrong, but the fact that you won’t respond will conclusively prove you are wrong. And if you do respond EVERYONE knows it won’t be with a solution. It will be with mindless dribble that makes no sense and provides not a scintilla of proof.

Of course if software is math you should be able to reduce the code for the home page to a number to some simplified equation, because after all math problems can be solved, and you say you can do it with pencil and paper. Oh boy! I can’t wait!

The trouble with people like you is that you are so ignorant regarding the broader issues involved that you try and pound every square peg you find into a round hole. Your view of the world is so myopic and limited you can’t even see the obvious. I almost pity small minds such as yours.

I can’t wait for the solution to the IPWatchdog.com homepage. LOL. I’ll hold my breathe. LOL.

-Gene

Wesley KerfootAugust 26, 2012 10:16 am

Gene, actually you are wrong. Not all of mathematics can be “solved”. It can be “proven”. Mathematics is all about generating theorems. Clearly you have no clue what mathematics actually is. Now, your website could in principle be reduced to a bunch of formulas in the lambda calculus (invented by mathematician/logician Alonzo Church) and thus be a proof in that formal system. This could be done, but first you have to realize that 1) HTML is not a programming language, so it can’t be reduced to LC (however the HTML parser could be), 2) Give me the PHP source code and I will happily reduce it to LC for you.

I suggest you read up on 20th century mathematical logic a bit: check out Stephen Kleene, Paul Cohen, Bertrand Russell, Kurt Godel, Haskell Curry, Alonzo Church, Alan Turing, etc… these are some of the greatest mathematicians of the 20th century and they would ALL agree that programs are in fact theorems. Also there is a theorem in meta-mathematics that PROVES there is a one to one correspondence between the set of all programs and the set of all theorems, it’s called the Curry-Howard Isomorphism (I assume you know what an isomorphism is since you’re such a mathematical bigshot, right?)

Also have a look at Djinn, which takes a Haskell type and tries to prove it, and then extracts a program from that proof. You need to read up on programming language theory before embarrassing yourself so much on here.

Gene QuinnAugust 27, 2012 12:00 am

Wesley-

LOL. I have no clue. Really? I’m afraid it is YOU who hasn’t a clue.

First, you say you need the PHP source code. Really? Interesting. That alone demonstrates you cannot be taken seriously. If you knew what you were talking about you would be able to access the code used to display the IPWatchdog.com homepage very easily using any number of available software tools. But that may be the problem. You seem to believe software doesn’t exist and there are no math tools that will assist you. Nevertheless, if you knew what you were talking about you wouldn’t have made such a ridiculous statement.

Why not prove the homepage for IPWatchdog.com then. You see, I was actually giving an assignment that should be able to be accomplished asking for someone who is anti-software patent to solve the IPWatchdog.com homepage. But if you prefer go ahead and prove it. This will be great fun since we both know you can’t do that. To think that software is susceptible to some sort of geometric proof is absolutely asinine. But have at it. In the meantime I’ll just note that you could have provided the proof to demonstrate I know nothing but you did not. Curious.

As for your brilliant mathematicians… NEWSFLASH… if they think software is math then they are not all the bright. It is self evident to anyone with a brain and without bias that software is a set of instructions that dictate how a machine performs a task. That is not math and anyone who says otherwise — including you — is wrong.

Finally, I will just point out that your comment is void of any facts or analysis. You choose to believe that certain mathematicians (who are wrong by the way) are brilliant and the mere mention of their name is enough to win an argument. That is not acceptable here on IPWatchdog. If you can’t do better than parrot the beliefs of others who are not participants in a debate then you really should go elsewhere. There are plenty of places on the Internet where such junior-leauge debating is permitted. Not here. So either keep up or go away.

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